capital punishment

What about the victims, why are they so rarely included in the history of crime?

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I have been researching and teaching the history of crime and punishment for well over a decade now and the field now covers considerable ground. There are excellent studies of the criminal justice systems of the past, from the medieval to the modern age, ranging across a wide geographical area from Britain and its empire, to Continental Europe, Africa and the Americas.  There are articles and books on the evolution and development of policing, the rise of the prison, and on different types of criminal activity. Researchers have studied homicide, highwaymen, fraud and forgery, shoplifting and pocket picking; they have looked at juvenile criminals, at female felons, and at (most recently) at the huge numbers of men and women transported to Australia.

Some of the earlier work in the history of crime – and I’m going back to the 1970s and 19780s now – set the scene for much of what has followed. Researchers like Douglas Hay and others that studied under Edward Thompson at Warwick, produced wonderful polemic work that critiqued the hanoverian justice system. They exposed the class bias at the heart of the English criminal justice system that selected its targets from the young working class men who robbed and stole from those better off than themselves.

Peter Linebaugh’s study of eighteenth-century London (The London Hanged) and Thompson’s  own Whig’s and Hunters are, with Hay’s seminal edited collection (Albion’s Fatal Tree), examples of left-wing revisionist histories of a Georgian justice system that seemed to have very little to do with ‘justice’ itself. As another firebrand of this sort of history, VAC Gatrell,  declared that the history of crime is a dirty subject because it is about power, not about crime itself.

Gatrell’s own magnum opus, The Hanging Tree, remains one of my favourite books both for its depth of research and the power of his prose. These pioneers in the history of crime redefined the way we studied this history, borrowing as they did from the wider field of social history, to place the criminal centre stage and, and this is important, raise him up as a victim of the justice system.

The Digital Panopticon, which launched late last year, traces the steps of those uprooted from their communities and dumped on the unforgiving continent of Australia in the late eighteenth and early to mid nineteenth centuries. Michel Foucault and later Michael Ignatieff’s work on the Victorian prison system also paints a bleak and desperate picture of men and women ground down and destroyed by a heartless penal system.

In short then the history of crime and punishment has mostly (since the 1970s at least) been a history of how the state has brutalised those caught up in the criminal justice machine. What is largely missing from the story is that of the victims of crime.

Now, I understand why this was the case in the early years. Historians (particularly those of the left) were keen to show that working-class people had agency, that they were not simply condemned to the ‘condescension of history’ (as EP Thompson put it). Along with work that highlighted the fight for customary rights, the vote, resistance to oppression and creeping capitalism these historian created ‘social bandits’ and heroic highwaymen. More clearly, and less controversially, they attacked the state and its mechanism of social control.

But is it now time to think about the victims of crime? After all, since the late twentieth century the right of the victims of crime have increasingly been placed on the agendas of legislators and criminal justice commentators. Modern criminology does acknowledge that victims need to be both seen and heard; restorative justice has gained ground and recent debates about the release of John Worboys have re-energised calls for victims to be better informed or consulted when offenders are let out of prison.

I think we need to start to try and place the victims at the centre of our studies of crime and punishment, or at least to better understand their role and their experience. We have had excellent work that looks at the role victims have played as prosecutors, which acknowledges their ability to help secure pardons (or conditional pardons) for property offenders sentenced to hang under England’s ‘bloody code’. But what about some work on the shopkeepers in London that appear in the Old Bailey? Or the men and women  robbed and beaten by highwaymen, or those fleeced in city taverns by ‘cunning’ prostitutes? Could we try to present a history from their perspective?

It is not easy of course. We have ended up knowing a lot more about the criminals than we have the victims. Even when it comes to the most famous unsolved murder case in history – the Whitechapel (or Jack the Ripper) murders of 1888 – there is precious little on the five (or more) women who were killed, at least by comparison to the endless commentary on who the assassin might have been. At least Haille Rubenhold is working on this as I write, so that may be addressed fairly soon.

So this is a call if you like, to prospective PhD students, and others working in the field. I’m not asking us to stop exposing the cruel penal systems of the past (or those of the present for that matter), nor am I saying that everyone executed, transported, flogged or imprisoned deserved their fate, but perhaps we now need to redress the balance a little and begin to research those that suffered in a different way from the prevalence of crime and paucity of protection from it that a deterrent based system in the past offered them.

Drew Gray

Drew writes a daily blog on the Victorian Police Courts and teaches the History of Crime at the University of Northampton.

indicative bibliography

Foucault, Michel (1975). Discipline and Punish: the Birth of the Prison.

Gatrell, V.A.C, (1994) The Hanging Tree: Execution and the English People 

Hay, D (1975), Albion’s Fatal Tree

Ignatieff, Michael (1978) A just measure of pain: the penitentiary in the industrial revolution, 1750-1850.

Thompson, E.P (1975) Whigs and Hunters: The Origin of the Black Act 

 

Women on trial? Rape and the law in Georgian and Victorian England

This week at the University of Northampton there are a number of events and talks are being held to raise awareness about healthy relationships, consent and sexual harassment. As part of this I decided to include a new lecture and seminar workshop on rape as part of my second year History of Crime module (HIS2010 Crime, Policing & Punishment in England, 1700-1900).

We have been discussing the topic of gender and its impact on crime and the court for the last couple of weeks and so students from History, Criminology and Law have been trying to understand why it was that the courts of 18th and 19th century England treated women in ways that were often quite different than men.

The prevailing social mechanism of patriarchy effectively meant that  most women were excluded from the law. Once married women became the property of their husbands, often before that they were the property of their fathers, and in between they were severely disadvantaged as second-class citizens in a male dominated society.

Students were fairly shocked to see that wife beating was commonly justified by men who felt entitled (under the much trumpeted if not strictly legal ‘rule of thumb’) to discipline their spouses so long as they did not go ‘too far’.

By contrast female thieves that acted under male coercion were sometimes able to escape justice by arguing that they were only ‘obeying orders’. This didn’t always work however but those women that found themselves sentenced to death could always opt to ‘plead the belly’ if they were pregnant (or could persuade a midwife they were).

Patriarchy most obviously disadvantaged women and girls who were subjected to male sexual violence. Survivors (which is as Joanna Bourke says, a much better terms than ‘victims’) were hamstrung by a system which was run entirely by and for the male half of the population.

In court (and most rape charges never got as far as a court, being settled or dismissed beforehand)  survivors were forced to tell their stories in front an audience that was exclusively male. Since a successful prosecution required  graphic detail of the sexual encounter, with evidence of penetration and (until the 1820s) male ejaculation, the court was cleared of any women and children.

The survivor therefore had to face the sneers and leers of her wider male community as she tried to explain what had happened to her. Given that a respectable and chaste young woman was not supposed to know anything about sex until her wedding night most resorted to euphemism and stumbled through their testimony ineffectually.

Cross -examination (by a barrister or their abuser) was routine, brutal and uncompromising. After all, it was said, rape was easy to cry and hard to disprove. A man’s life was literally on the line until capital punishment was removed from the penalty for rape in 1841.

If a survivor had known her attacker, if she had been seen out with him, or if he had been a regular visitor to her home then a conviction was unlikely. If she had placed herself in a vulnerable situation (such as walking out at night or across the fields unaccompanied) conviction was unlikely. If she was a poor domestic servant and her rapist a respectable pillar of society, then conviction was unlikely.

Her reputation would be dragged through the court and exposed to male view, just as her body had been exposed and used by her attacker. Even when men were convicted, as Elizabeth Cureton’s rapist was in 1829, a male dominated society would often bind itself together to  rescue him from the awful punishment his crime had earned him.

Rape or attempted rape epitomises 18th and 19th century attitudes towards women. Society was supposed to protect women, but only so long  as women played the game. If a woman (like Elizabeth Cureton whose case my students will explore through the records that the pardoning process for her abuser generated)  had attempted to live an independent life, had taken lovers, and avoided a marriage of convenience then she was deemed ‘fair game’. Many rape survivors in the past had their right to give consent removed from them by men that believed that their own own rights superseded those of the entire female sex.

Drew Gray